Michael P. Maslanka

Michael P. Maslanka is managing partner of the Dallas office of Constangy, Brooks & Smith. His e-mail address is mmaslanka@constangy.com. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He writes the “Work Matters” column for Texas Lawyer’s In-House Texas publication and records labor and employment podcasts that can be found at www.texaslawyer.com.

From Law.com work matters

August 2008

August 28, 2008

To hear the outcry, you'd think that Suleiman the Magnificent had risen from the grave and was leading his Ottoman armies through the streets of Shelbyville, Tenn. The New York Times reported that Tyson Foods and the union representing 1,200 employees at its Shelbyville plant agreed to a collective bargaining agreement replacing Labor Day as a paid holiday with Id-al-Fitr (pronounced eed-al-FIT-tr), which celebrates the end of Ramadan, the Islamic holy month of fasting. Why did they do it? The union says 400 or so of the 1,200 are Muslims, and two members of the eight member union bargaining committee were Muslim. They wanted to negotiate the day as a paid holiday in the contract. After all, it was important to the Muslim employees the union represented. This leads me to two legal points. First, a technical one: Under the National Labor Relations Act, a union owes those it represents a duty of fair representation. It violates the NLRA not to provide it. Second, a larger context: American legal institutions are flexible. The collective bargaining system was set up in the 1930s. Its beauty (and I use that word deliberately) is that, almost 80 years later, it accommodates change. Poor Tyson has been berated in blogs and by radio talk shows. Shouldn't it be applauded, not hissed?

A friend of mine says this about written documentation in the workplace: It's like sex. When it's good, it's great. When it's bad -- well, it's better than nothing. But here's a question: What is the legal import of "nothing"? The 5th Circuit answered that question July 10 in Mire v. Texas Plumbing Supply Co. Inc. Employee protests sexual harassment. She gets fired and sues for retaliation. The employer says she was a poor performer and difficult to work with. Employee and the EEOC say there is not one piece of paper supporting this argument and she got a raise last year for good performance. Thus a jury can conclude the employer's reasons are pretext, and she gets to go to a jury. The 5th Circuit says no, reasoning that the absence of something (documentation) is not the evidence of something (discrimination). To get to a jury, she must show the employer’s assessment of her is suspect or inaccurate. The Zen idea of one hand clapping just won't do it.

August 18, 2008

I have taken lots of depositions in employment cases in the last 28 years and have taught deposition tactics. Lawyers ask me how they should start their depos of plaintiffs. Start at end, not the beginning. Ask: 1. What are you doing now for work? 2. Do you like your job? Why? 3. What is the name of your supervisor? 4. Does he or she treat you well? 5. What's your career path? Here's the deal. Plaintiffs are very wary of saying anything that might endanger their current job and thus tend to overcompensate by talking about how happy they are, explaining that the future looks rosy and expounding on the virtues of their current supervisors. It may not be true. But, for me, it is useful.

Under the Employee Free Choice Act, if a union gets a majority of employees to sign cards saying, "We want a union," then the unions is in, no secret ballot election. (As a young National Labor Relations Board lawyer I set up plenty of voting booths, keeping at least one of the contraptions in my car.) But no less than former Sen. George McGovern, D-S.D., has suggested that the EFCA’s move to end the secret ballot is a bad idea. He made the case in The Wall Street Journal back on Aug. 8. Why? Is he a truth teller or a Trojan Horse? Maybe the latter. When the American people learn that the secret ballot might go, they will pop a blood vessel. So perhaps McGovern is staking out a position, so he can offer an alternative — possibly what Canada does (an election within seven days of the unions turning in the cards to the NLRB). Because unions usually only file a petition for an election when they have 60 percent or more cards signed, an election in seven days would mean a union victory and preclude the employer from campaigning in the now-typical election period (45 days from petition to election). Is reform of the election process needed? You could make an argument for it. A lot of the rules favor employers. That's just a fact. Is EFCA the answer? I have my doubts. Sometimes the cure is, in fact, worse than the disease.

August 07, 2008

Quick, which is the only predictive question in a hiring interview:1. Why should I hire you?2. What do you see yourself doing five years from now?3. What do you consider your greatest strengths and weaknesses?4. How would you describe yourself?5. Which college subject did you like the most and which the least?6. What do you know about our company?7. Why did you decide to seek a job with our company?8. Why did you leave your last job?9. What do you want to earn five years from now?10. What do you really want to do in life?“Sway: The Irresistible Pull of Irrational Behavior” by Ori and Rom Brafman says that Professor Allen Huffcutt, who has spent 20 years studying interview techniques, claims it's No. 6, because it shows the applicant has spent at least some time researching the company. The others are either slow pitches across the plate like No. 1 or are useless Magic 8 Ball questions about the future like Nos. 2, 9 and 10. What is Huffcutt’s advice? Cut the subjective stuff, focus in on a Joe Friday "Just the facts" approach, or better yet just give an aptitude test. Most employers overestimate our ability to quiz an applicant and get the right person for the right job. The bloodless approach is the best approach, or so he says. What say you?

Did you know there is futures
trading in who will win the election? It's just like futures trading in
commodities. Guess who the money is on: U.S. Sen. Barak Obama, D-Ill. This
futures market is very predictive. If it is this time around, employment law is
going to get impacted — a lot. Look at the Arbitration Fairness Act and the
Civil Rights Act of 2008. The two bills would outlaw workplace arbitration of
employment disputes, except those found in collective bargaining agreements.
Under the AFA, the courts, not self-interested arbitrators, will determine the
applicability of the AFA. Under the CRA, arbitration is permitted but only if
it is voluntarily — that is, no unilateral employer implementation. And,
really, isn't arbitration so 1990s? It started off as a good idea and as an
antidote to a very sick civil justice system. But things change, sometimes for
the better. Now we have judges keeping out junk evidence, appeals courts
patrolling nutty trial court decisions and jurors who are less likely to get
angry. Employers have learned that one arbitrator can be just as capricious as
six or 12 jurors. Plus, when the boss hears that there are no appeals from an
arbitrator’s award, then a "great" idea (when the company wins) turns
into the boss asking what knucklehead came up with this loopy idea (when the
company loses).

August 05, 2008

A same-sex harassment case had made its way to a Texas court of appeals. The holding is the legal version of the classic good new, bad news scenario. In City of San Antonio v. Cancel,
the 7th Court of Appeals in Amarillo set aside a judgment for $90,000.
Michael Cancel worked as a janitor at the San Antonio airport. Boss
calls him into his office and the following occurs, or so claimed
Cancel. He was asked to do something "crazy" like take off his shirt.
The boss told him the boss knew people in the modeling world and Cancel
had modeling potential. The boss asked to lift up his shirt, which
Cancel did, which only exposed a t-shirt underneath. The boss
supposedly "kept messing with his pants area." The appeals court said there is a claim under Texas law for same sex
harassment. That’s a safe bet. After all, the US Supreme Court blessed
the claim back in 1998. But then the appeals court took the judgment away. Why? The behavior was
boorish and ill mannered but not so severe or pervasive to interfere
with Cancel's ability to carry out his job duties. But note: The law is in the disjunctive — severe or pervasive. What if
the boss had exposed himself, even just once? Same result? Maybe not. A
single bad incident, if severe enough, can create a sexually hostile
work environment , whether same sex or not. Same with any hostile environment based on a protected characteristic, for example race where an offensive slur is used once or twice. Employment
law serves as a barometer of what society at any given time considers
appropriate behavior. It reflects values. While the plaintiff lost this
case, courts are increasingly reluctant to impose their views on
appropriate behavior. Ten years ago that wasn't the case: Courts did it
by the numbers: X numbers of touching, Y numbers of bad language, Z
numbers of propositions = a hostile environment. Now, courts leave it to jorors to sort through what occurred and impose their own views on what is or is
not enough. In most cases, courts will let them do so.

Here's the thing about employment law. It is counterintuitive. It says one thing and means another. Look at the Pregnancy Discrimination Act. It seems simple: If you are pregnant, then you are protected. But it is more -- so much, much more. Take a look at Hall v. Nalco Co., a 7th U.S. Circuit case decided a few weeks ago. Employee was terminated for absence from work. Why was she gone? To get in vitro fertilization. She sued under the PDA, but the trial court said no claim, because infertility is a gender-neutral condition. Appeals court disagrees. It says that the mere potential to become pregnant is protected under the PDA and that only women, and not men, can get in vitro and thus it is not a gender-neutral procedure. She has a claim. It’s sort of like a case from the U.S. District Court for the Northern District of Texas, Poucher v. Automatic Data Processing, in which the plaintiff told her boss that she was thinking of starting a family, she then gets fired, and she sues under the PDA. The court says "the intent to become pregnant falls within the scope of protections afforded by Title VII." Guess our parents were wrong: You can be just a little bit pregnant.

Here is a core principle of employment law: If you say something is important, then treat it as if it’s important. This is core. Employers who sue an employee absconding with a trade secret need to show that they kept their jewels under lock and key. That means stamping docs as confidential, limiting computer access and implementing policies requiring nondisclosure. Same with hiring. If a job description says that XYZ is a key requirement of the job, then focus interviews on that. When you think about it, this rule applies more broadly. Check out my article, “The Best End-of-Summer Books for GCs” on corporate counsel hiring a firm. If the firm says it puts clients first, rolls out colorful brochures of happy people and rocks a sleek Web site, then potential clients should find out if that is true. Just ask how the firm compensates lawyers. Are partners paid only for brute numbers? Are associates bonused for only billing 2,000 hours, or are they compensated for client care and satisfaction? If you say it's important, then treat it as if it's important. I suppose a consultant would call this alignment. However it is framed; it's a core principle. What are yours?

A speaker at the conference I chaired handed out an article by Washington Post writer Shankar Vedantam titled, "Most Diversity Training Ineffective, Study Finds" from the Jan. 20 issue. Vedantam writes that a review of 31 years of data from 830 workplaces found that mandatory diversity training exercises conducted at companies resulted — get this — in a 7.5 percent drop in the number of women in management , with the number of black female managers falling 10 percent and that of black males falling 12 percent. Why? Organizations often do mandatory training just to avoid lawsuits. When training is voluntary and aligned with a company's business goals, the reverse was the case with greater diversity popping up in the work force. Bottom line? Make sure diversity is all encompassing, not just race and sex, but life experiences and different ways of thinking. And, no one likes to be lectured to. As the article notes, the mandatory, finger-wagging model creates a backlash. Guess Dr. Samuel Johnson was right: It is always better to remind than to lecture.